Ban the Box Movement May Reach Tipping Point But Could Also Inadvertently Do More Harm than Good in 2016

The fast spreading Ban the Box movement that removes criminal history questions from job applications and delays such inquiries until later in the hiring process is gaining national acceptance and may reach a tipping point in 2016. However, Ban the Box laws that go too far could also inadvertently do more harm than good. This is the number 7 trend selected by Employment Screening Resources® (ESR) Founder and CEO Attorney Lester Rosen for the 9th annual ESR Top Ten Background Check Trends for 2016.

“Ban the Box laws are enacted with the best of intentions to give ex-offenders a fair chance at employment and offer a fair and balanced solution to the criminal history question by prohibiting employers from automatically disqualifying ex-offenders from opportunities based just upon a criminal record while also allowing employers to conduct an appropriate criminal background check at some point,” says Rosen, author of ‘The Safe Hiring Manual.’ “However, if Ban the Box laws go too far they may end up potentially hurting the ex-offenders they were meant to help.”

Rosen explains that Ban the Box laws protect ex-offenders from an “early knock out” punch in the hiring process based solely on the disclosure of a criminal record by delaying inquiries into criminal records of job applicants until later in the process so an ex-offender can compete fairly on the basis of their knowledge, skills, and abilities for the position. But when Ban the Box laws go too far the unintended consequence may well be that these laws actually hurt ex-offenders in the job market and can also hurt individuals who have a spotty work history due to the Great Recession.

“Unfortunately, some Ban the Box laws go beyond the application process by regulating what criminal matters may be used in the background screening process,” Rosen says. “Some of these laws go beyond giving ex-offenders the chance to compete on an even playing field for jobs and include regulation of what criminal matters an employer can consider after a job offer and even imposing limitations on the type, nature, and age of criminal records employers may consider for a background check of applicant.”

The Ban the Box movement is spreading rapidly across the United States and fast becoming a national standard that will soon affect most employers. As of December 2015, more than 100 U.S. cities and counties have passed Ban the Box legislation. In addition, 18 states – California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont, and Virginia – have Ban the Box restrictions in place.

The Ban the Box movement arose to help the large number of U.S. job seekers with some form of criminal record. A 2011 study called ‘65 Million Need Not Apply’ by the National Employment Law Project (NELP) estimated 64.6 million people in the U.S. – representing 27.8 percent or more than one in four adults – had a criminal record on file. NELP, a research and advocacy group for low-wage and unemployed workers, has since revised that number up to approximately 70 million U.S. adults.

However, Rosen says some Ban the Box efforts may have the unintended consequence of hurting ex-offenders. The San Francisco Fair Chance Ordinance (FCO) that took effect August 13, 2014 is an example of a Ban the Box law that may go too far. The San Francisco FCO prohibits affected employers in the City and County of San Francisco from considering a conviction older than seven (7) years. This is critical because the FCO defines the seven year period as starting from the date of sentencing.

The other 57 counties in California operate on a rule that a person needs be custody free for seven years before a conviction becomes too old for a background check firm to report legally. The FCO “look back” period is seven years even if a person has been in custody during those seven years. As a result, a San Francisco employer would not be able to legally consider the criminal record of a person convicted seven years and one day ago for a serious offense that was just released from custody.

To address this problem, the Board of Supervisors of the City and County of San Francisco passed an Amendment to the FCO on December 9, 2014 that allowed employers “to consider convictions more than seven years old when hiring for positions involving the supervision or care of minors, dependent adults, or seniors.” But Rosen says gaps would still exist. A person convicted of a violent sexual offense such as rape whose date of sentencing was over seven years ago could apply to work in a women’s shelter after being released from prison. Under the current FCO, an employer could not use the offense to protect that particular population at risk. Rosen gives an example of a real-life violent offender who would have benefited from the same FCO seven year rule whose name is infamous in the city of San Francisco:

Dan White was a former San Francisco Supervisor who shot and killed San Francisco Mayor George Moscone and Supervisor Harvey Milk on November 27, 1978. He was convicted on two counts of voluntary manslaughter on May 21, 1979 and sentenced on July 3, 1979. He served five years of his seven-year sentence and was paroled on January 7, 1984. If the San Francisco Fair Chance Ordinance had been in effect at the time, two years after being released from prison White could have applied for a job in San Francisco and it would have been unlawful for a covered San Francisco employer to consider the fact that he killed a mayor and supervisor. (NOTE: White committed suicide on October 21, 1985, less than two years after his release from prison.)

As a result, Rosen says that Ban the Box laws such as the San Francisco FCO may force employers to find another solution that may negatively affect ex-offenders while enabling employers to comply with the letter of the law and protect their organizations. Since a serious barrier has been placed on their ability to obtain or use relevant criminal records, employers may rely on an applicant’s employment history as a leading barometer of safety and assume that no “employment gaps” would mean no prison time.

“The idea is that if an applicant has a documented employment history without significant interruptions, then an employer can have some degree of confidence that the person has probably not spent time in custody for a serious criminal matter,” Rosen explains. “The practical result is that a person with a criminal record that created gaps in their employment history would be knocked out early in the process anyway so that the Ban the Box rules become meaningless.”

By forcing employers to rely more heavily on employment history, Ban the Box laws could potentially punish ex-offenders as well as individuals with no criminal record but who had difficulties maintaining a consistent employment record during the Great Recession. By overregulating the use of criminal records when hiring, Ban the Box laws may arguably make the situation worse for ex-offenders by encouraging employers to rely increasingly on an uninterrupted job history as the most critical screening tool.

Another potential problem that Rosen sees with the Ban the Box movement is that second chance supporters will focus on local laws in an effort to limit background checks so that a “Balkanization” of screening laws will make background screening harder to operate on a national basis. The federal Fair Credit Reporting Act (FCRA) that governs background checks in the United States preempts many state laws but not local laws so that is an avenue being used by organizations to litigate background checks. Ban the Box laws that impact the timing of when an employer can ask about a criminal record add to that employer’s compliance obligations and makes hiring increasingly complex.

“When individual counties or cities start passing laws that go beyond the core concept and attempt to impose local rules on employers as a matter of social policy, it can create confusion and uncertainly for employers, the public, and ex-offenders,” explains Rosen, a frequent speaker in the ‘ESR Speaks’ background check training program. “In addition, there is no ability to give local employers any type of fair legislative protection from negligent hiring allegations if an ex-offender is hired since that can only be done on the state level.

Another example of local laws making hiring more complex and therefore giving employers an incentive to rely more upon employment history as a leading risk indicator is the update to a Ban the Box Ordinance in Philadelphia, Pennsylvania that took effect on December 15, 20145. The Ban the Box Ordinance update signed by Philadelphia Mayor Michael A. Nutter strengthens anti-discrimination protections for ex-offenders seeking employment with the City and with public and private businesses.

This Ban the Box Ordinance in Philadelphia prohibits City agencies and private employers from asking about criminal history on job applications and employers may perform a background check only after a conditional offer of employment. If a background check does reveal a criminal conviction within the last seven years, the employer must consider the nature of the crime, the time that has passed since the offense, and the duties of the job when determining whether to continue the offer of employment.

Rosen says that local Ban the Box laws that go beyond the original purpose of the movement underscore the need for model legislation to help develop a workable national solution. Without such a solution, well-meaning advocacy groups in a city or county may pass changes without regard to the unintended consequences. Having model legislation for Ban the Box would give city and county officials a point of reference in reviewing proposed legislation so they understand the consequences of laws they pass.

Employment Screening Resources® (ESR) is a longtime supporter of Ban the Box and encourages employers to prepare to adopt Ban the Box policies in anticipation of the spread of the Ban the Box movement and the fact that tracking which states, counties, or cities have such laws has become too difficult. ESR also supports the establishment of a national Ban the Box process similar to the Executive Order to Ban the Box announced by United States President Barack Obama in November 2015.

However, ESR is also concerned that unchecked Ban the Box efforts that go too far such as the San Francisco Fair Chance Ordinance could end up hurting ex-offenders, the unemployed, and make operating a business much harder. To help employers stay up-to-date with Ban the Box, ESR offers a complimentary Ban the Box Information Page with links to news, resources, and legislation about the Ban the Box movement. The ESR Ban the Box Information page is available at http://www.esrcheck.com/Ban-the-Box/.